The Home Office have released an updated guidance for compliance officers regarding pre and post licence sponsor compliance visit and assessments.

Indeed, companies holding or applying for a Sponsorship Licence need to comply with Immigration Rules and HR system requirements.

The Home Office can decide to attend the company’s office at any time before (pre-licence assessment visit) and after (post-licence compliance visit) granting the Sponsorship Licence and conduct a compliance visit and assessments to check if the company meets the requirements and fulfils its duties as a Sponsor.

The main change in this new guidance is the removal of parts of the guidance about making a recommendation.

Other changes reflect the updated Immigration Rules and some minor housekeeping.

Licence decision outcomes

From 15 January 2018, compliance officers will no longer make a recommendation (feedback) regarding the licence outcome following a compliance visit. They will conduct and document a thorough assessment of the sponsor’s current state of compliance, gathering supporting evidence.

The caseworker will then use the evidence presented in the report, along with other relevant evidence to make a decision regarding the licence outcome.

The Home Office will not suggest any improvements in its report. They will focus on highlighting each breach.

Employers wishing to retain or hire non-EEA workers need to get fully prepared. In order to do so, the services of an immigration solicitor advising and assisting for Sponsorship Licence applications but also for the compliance with visa rules and duties as a Sponsor are now primordial.

If you wish to apply for a Sponsorship Licence or are already a sponsor and want to make sure that you comply with the complex immigration rules, please do not hesitate to contact our immigration team or our senior solicitor, Pam Barar.

The EU General Data Protection Regulation (‘the GDPR’) will enter into force on 25 May 2018. To give effect to the GDPR, the UK Government has introduced the Data Protection Bill 2017. This legislation will replace the Data Protection Act 1998.

Schedule 2, Part 1, Paragraph 4 of the Data Protection Bill 2017 states that there is an exemption to data subjects’ rights where personal data is being processed for the maintenance of effective immigration control, or for the investigation or detention of activities that would undermine it. This is the immigration control exemption.

This exemption will have an effect on the right of individuals to access their personal data through Subject Access Requests (SARs). That is of extreme concern to immigration solicitors.

Legal representatives make SARs to the Home Office for the release of their clients’ files as these files frequently provide crucial information about their clients’ immigration histories.

SARs are frequently essential to individuals and their legal representatives when preparing applications to the Home Office, appealing against negative decisions, and mounting legal challenges against removal, detention and deprivation of citizenship.

Under the exemption, “data controllers, including the Home Office, would not be obliged to respond to subject access requests from people wishing to know what data about them is retained, if the Home Office determines that responding would engage the exemption”. There is no definition of what immigration control exemption means in the Bill.

If the exemption is applied, individuals will not be able to access their personal data to identify any factual inaccuracies and it will mean that the system lacks transparency and is fundamentally unfair.

SARs have been vital to legal representatives’ work especially with vulnerable groups, including individuals with mental health issues, domestic violence victims, children, and persons in immigration detention. Curtailing the right of these individuals and their legal representatives to access this information therefore fundamentally undermines access to justice.

SARs are also the primary means through which legal representatives can identify mistakes, miscarriage of process and mismanagement on the part of the Home Office.

The immigration control exemption will reduce legal representatives’ ability to best represent their clients and remove an important tool in holding the Home Office to account when they ignore or misrepresent facts.

The government plans to double the immigration health surcharge paid by temporary migrants to the UK. The annual charge is paid by people from outside the European Economic Area (EEA) who are seeking to live in the UK for 6 months or more to work, study or join family.

The surcharge will rise from £200 to £400 per year. The discounted rate for students and those on the Youth Mobility Scheme will increase from £150 to £300.

This increase is justified by the Department of Health and Social Care (DHSC) on the ground that the Department estimates that the NHS spends £470 on average per person per year on treating surcharge payers.

There is no timetable at the moment because the change is “subject to parliamentary time and agreement”. The Immigration Health Surcharge will increase but not for now.

Updated guidance “Indefinite Leave to Remain: calculating continuous period in the UK”

This guidance covers how to calculate the 5-year continuous lawful period in the UK requirement for applicants applying for indefinite leave to remain (settlement). It also covers accelerated settlement in relevant categories.

– adds Points Based system (PBS) dependants as a category covered by this guidance;

– removes the Tier 2 rule covering gaps in employment of 60 days;

– removes references to equivalent routes in the Crown Dependencies – Information on leave held in the Crown Dependencies has been moved to Common Travel Area guidance.

This updated guidance replaces the Indefinite leave to remain: calculating continuous period in UK modernised guidance version 15.0 which has been withdrawn and archived.

Changes to the section covering 180 days’ absence in a 12-month period

180 whole days absence

According to the new guidance, “no more than 180 days’ absences are allowed in a consecutive 12-month period”.

From 11 January 2018, the rules refer to absences in any rolling 12-month period, whereas previously they referred to absences in block of 12 months starting at the date of the application’s submission.

Example

o Under the previous rule

If an application is submitted on 01 January 2018, the Home Office will calculate the 180 days’ absences from:

– 01 January 2018 to 01 January 2017

– 01 January 2017 to 01 January 2016

– 01 January 2016 to 01 January 2015

– 01 January 2015 to 01 January 2014

– 01 January 2014 to 01 January 2013

o Under the new rule

If an application is submitted on 01 January 2018, the Home Office can calculate the 180 days’ absences for any consecutive 12-month periods from 01 January 2013 to 01 January 2018.

For instance, if the applicant has 190 days of absences in:

– September and December 2016 and,

– February and July 2017

The Home Office can calculate the absences from August 2016 to August 2017.

Whereas under the old rules, the 190 days absences could be divided and calculated separately under year 2016 and 2017 so that the applicant can still fall eligible for the rules.

Absences due to economic or humanitarian crisis

On 11 January 2018, the Immigration Rules were amended to discount any absences from the UK from counting towards the 180-day limit where the absence was due to the applicant assisting with a national or international economic or humanitarian crisis, such as the Ebola crisis which began in West Africa in 2014.

This covers all Tier 1 and Tier 2 applicants. ILR applicants should provide evidence from their sponsor (if applicable), employer or similar organisation to confirm that the absence was related to a crisis.

Exceptional cases

Absences of more than 180 days in a 12-month period before the date of application will mean the continuous period has been broken. However, the Home Office may consider the grant of indefinite leave to remain outside the rules if the applicant provides evidence to show the excessive absence was due to serious or compelling reasons.

The applicant must provide evidence in the form of a letter which sets out full details of the compelling reason for the absence and supporting documents.

Serious or compelling reasons will vary but can include:

– serious illness of the applicant or a close relative

– a conflict

– a natural disaster, for example, volcanic eruption or tsunami

Absences of more than 180 days in any 12-month for employment or economic activity reasons are not considered exceptional therefore cannot be discounted.

An applicant can also provide a letter setting out reasons why they believe changes to how the 180 days are counted will cause them exceptionally harsh consequences.

Addition of PBS dependants and spouse as a category covered by the new guidance

PBS dependants

PBS dependants and spouse now have to satisfy the 180 days requirement. They must be absent from the UK for no more than 180 days in any consecutive 12-month periods. However, they do not need to include any absence from the UK during periods of leave/visa granted under the Immigration Rules in place before 11 January 2018 towards the 180 days allowable absences.

Removal of the Tier 2 rule covering gaps in employment of 60 days

Previously, for Tier 2 migrants, the 5 year continuous employment requirement in the UK was not considered to be broken when, during a break in employment, the applicant applied for further leave as a Tier 2 migrant within 60 days of the end of their previous employment. Unfortunately, this is not applicable anymore.